The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-05-04

of that hoard or of it's officers or members and
while out of proper custody and before use by
the board were criminallv mutiiated and forged.
Upon these facts and the law explained you
will that your Investigations viii involve
three subjects or branches of inqu:ry
First-Did any inspector judge who was
designated TO receive and return 10 rhe board OF
canvassers the tally paper and certificate OF the
board of judges for any precinct knowingly
neglect, omit refuse to perform any duty re-
qured or i'm posed by law relating to affecting
the documents intrusted to him and reating
10 affecting the congressional election and II
30 who was the delinquent judge or Inspector
Second-Who If any body. counseled aided or
procured any such judge. inspector officer of
the board of canv ssers to neglect. omit violate
or refuse to perform such dutvl
Thlrd-Who If any two more, eonspired
TO commit ofense against the United States,
ny counseling. advising. aiding otherwise
procuring any such judge or inspector to neg
let. omit. violate or refuse 70 perform such
duty. and what act TO effect the object of the
conspiracy did any of the conspirators do?
That is TO say. there are involved here three
kinds of offenses and three classes OF offenders.
VINO may be indicted separately. The inspector
or judge of election may be indicted for his neg
iect or disregard of duty; any who counseled,
aided. or procured such neglect or omission OF
duty by the officer, may be indicted for so doing;
and those who did directly aid. counsel or
procure such omission or neglect OF duty, but
were parties to n conspiracy to effect such omis-
sion or neglect, and Of them did something
10 accomplish this unlawful purpose may be in-
dicted for such conspiracy.
In respect TO the inspectors and judges of cleo
tion whose papers tempered with, il is
doubtless e some Of them, but perhaps not
of all. that the guilty of wrongful in
tention in parting with the papers and had no
suspicion of the criminal designs of others.
While therefore, il is we'll to have it understood
and EN- phnsized that mere neglect Of duty, with
out improper purpose on the part Of such Of
fcer, may be n crime against the United States,
punishable by both fine and Imprisonment, new
ertheless would not advise the return of in
dictment against any judge or inspector merely
because he may be shown to have inadvertently
permitted the papers intrusted to him to fall
into unauthorized hands, but if any such officer
was guilty of gross neglect or of positive disre-
gard of duty in this respect especially If ne
knew, or under the circumsta stances ought to have
Apprehended or suspected or If he willing
70 connve at the execution Of, the criminal de-
Bigns of others upon the papers, your duty to
indict would be clear.
The act of aiding, counseng advising or
otherwise knowingly procuring, or the act OF
conspiring 70 commit or procure, the commission
of an offense, of course, implies guilty pur-
pose and all such offenders, against whom ade-
quate proof may be obtained should by no
means be allowed to escape. That proof is ade-
ouate which establishes q strong and reasonable
probability of guilt. The doctrine of proof be-
yond a reasonable doubt. applicable TO open
and final trial upon an Indictment found. has no
application To the work Of grand jury, which
Is simply to say whether or not there is good
ground for bringing the suspected party to
public hearing
tify me in requiring an investigation of the mat
ters mentioned as constituting, if proven in the
different phases suggested criminal violations
OF the federal statutes within the rlghtfu 1urls-
diction of this court, therercan now be, as think
no debate question. If on account of the com
pick relations between the States and national
government there once might have been room
for honest difference of views on the subject
there is room longer, because the Supreme
Court of the United States has put the matter
st rest | refer to two decisions of that court.
rendered in the year 1879, in the FIX
parte Siebold and Elk parte Clarke, 100 Z. s. 37l-
404, the last named being the case which Is more
distinctly in point here.
In order to ascertain the facts upon which the
indictment in that case was predicated and 20
demonstrate more certainly, IL possible. the
scope of that decision | have procured and have
before copy of the indictment against
Clarke. and also statement by the United
States district attorney, who conducted the
prosecution, together with letter from the
present district Judge which show that the facts
and circumstances of Clarke's offense were al
most Identical with the facts known to exist
here, and that the questions of law and statutory
construction involved were not different
The district attorney says: 1.-The defendant
[Clarkel was judge at congressional election,
and one of the poll-book including the return
having been sealed up by the judges and direct
ed to the clerk of court. intrusted to him for
delivery TO the clerk He was convicted of neg
lecting his duty judge-frst, IN failing to
convey the poll book thus sealed to the
clerk: second, in permitting the same
Co be opened while in his custody.
IL was shown at the trial that the poll book in
question, after being put under cover and sealed,
was intrusted to him, as one OF the judges, for
delivery to the clerk, and that before he deliv-
cred it the sealed package had been opened and
the return altered. There was originally third
count, charging him with permitting the return
10 be altered with the intent to affect the result
of the election; but the vote for Congressman
was not changed. this charge was abandoned
and tho count nollied before trial. AS the
case was actually tried. the alteration of the
poll-book merely item of evidence to
show that the package had been opened while in
his custody. thus avoiding all question as to the
relation of the fraud TO the congressional cleo
ton. The return for Congressman being in the
same package, his neglect to deliver the same
unopened clearly within the scope of the
act of Congress
The judges letter contains the further signif-
cant statement, made the authority of the
district attorney that ''the evidence did not
make it clear that Clarke opened the package.
but that he did permit another person
to take it to a room in the DaboIE Exchange
where it opened and the returns tempered
with, Clarke not knowing or caring to know who
did it,"
Having been sentenced for this offense to one
years imprisonment Clarke carried his case, on
an application for a writ of habeas corpus, to the
Supreme Court, and that court, after recting
the substance OF the Indictment as charging SIM
ply unlawful neglect and violation of duty in
respect to the custody and return of the papers
to the clerk without alleging any unlawful intent
on the part of the defendant. used this language:
cit is conceded that this Indictment was found
Cnu6r Sec. DDIO OF the 1IeVlSeO statutes OF the
United States. The case was argued
at the same time with parte Siebold supra, p.
81, and most of the questions involved have
been considered in that AS to
the merits of the there be serious
question that the indictment charges an offense
specified in the act of Congress. Revised Stat
utes. Section 55l5. The principal
question is, whether Congress had constitution
al power TO enact law for Furnishing State
officer of election for the violation of his duty
under a State statute in reference an cleo
. ion, - tiraf 70 As
question has been fully considered in the prey-
Gus case it is unnecessary TO add any thing fur
Their the subject. Our opinion is that Con-
gress had constitutional power TO enact the law;
and that the cause of commitment was lawful
and sufficient"
Reference has already been made TO the de-
cision of the Circuit Court. reversing the decis-
ion of this court, in the of the witness
Perkins. who committed for contempt by
United States Commissisue Van Buren, for re-
fusing to be sworn and testify on the investiga-